Access to a Lawyer

David Nuttall Excerpts

Wednesday 7th September 2011 Commons Chamber

[Mr Slaughter]

The hon. Gentleman makes part of my point for me. There are concerns about the operation of the European arrest warrant, but that is one of the reasons we wish to see the provision of good-quality legal advice and access to lawyers throughout the European Union. He might have his own solution on our relations with Europe, probably a rather more fundamental one than mine or the Minister’s, but we are where we are and it is therefore important that these safeguards exist.

I was going to mention a third case, that of John Packwood. There are unfortunately a large number of such cases, but those are the three famous ones that have featured heavily in the UK press, particularly the Daily Mail, which has championed many of the cases in which the most perverse decisions have been made in foreign jurisdictions. For the people involved and their families, the experience was a nightmare. They were in a foreign country trying to communicate with officials who spoke an unfamiliar language and subject to procedures that were often summary and perverse, and yet they had no knowledge or advice with which to challenge them. It should be a matter of concern to the Government to protect our citizens overseas and ensure that they are given the same consideration as we would grant citizens of other countries visiting Britain, and that they are given the opportunity to do so and, at least for the present, decline.

We should not be slow to see the high standards of justice that British people expect of our criminal justice system applied to other countries. The directive would assist that process. After all, it was the previous Conservative Government who enacted the Police and Criminal Evidence Act 1984, which provided a suspect in police custody with a statutory right to legal advice. Section 58 of the Act states that a person arrested and held in police custody is entitled to consult a solicitor privately at any time. The detention code provides that the consultation may be in person, in writing or by telephone and that free and independent legal advice is available. Therefore, the decision not to opt in to a directive that has the same intention as those provisions seems strange, and I will move on to what the Minister says are the differences.

First, the directive’s requirements are broadly in line with current UK legislation. Where there are divergences—the Minister mentioned one or two—they are negotiable. This is a process of ongoing negotiation, and in some cases they are subject to the requirements of national law. The example of searches, which the Minister gave, is one of those.

Secondly, the negotiations are continuing. As the Minister said, many other countries are concerned that there is inadequate room for derogation and are questioning aspects of the directive. It is therefore unlikely that it will remain in its current form. It seems pointless to send negotiating teams, as the Minister proposes, when we are the only country that intends to opt out at this stage, which fatally undermines the authority and leverage that this country will have. We appear to be throwing away an advantage to British citizens for reasons that are at best unconvincing and at worst spurious. Why have the Government taken this position? The Minister might have seen the briefing from JUSTICE, which takes the Government’s points of objection and states that they are either points that can be negotiated, or points that the Government have got wrong. It looks as though the Government are looking for reasons to opt out at this stage.

Tomorrow, the Minister and I will meet again for the next Committee sitting of the Legal Aid, Sentencing and Punishment of Offenders Bill, and I look forward to that in Committee Room 12 at 9 o’clock. One of the first clauses that we will consider is clause 12, which gives the new director of legal aid casework and, by extension, the Lord Chancellor the power to decide who does and who does not get access to a lawyer in a police station—and to do so on the basis of an interests of justice test.

There has already been an outcry throughout the criminal justice system at that attack on a basic right, which was introduced to avoid the risk of a miscarriage of justice. PACE itself was in part a response to the appalling miscarriages of justice of the 1970s, but, in answer to the criticism that the Minister is taking on a power that will allow the state to regulate who does and who does not get advice in a police station, he says that he has absolutely no intention of taking away legal help from police stations, so why is he then arrogating to himself the power to do so?

Taken together with the premature decision tonight to opt out of the directive while negotiations continue and before any decision needs to be taken, clause 12 of that Bill suggests that the lessons that led to PACE are being forgotten by this Government.

May I ask the Minister three questions, which, if he replies at the end of the debate, he may wish to answer? First, why are the Government not going to do what they did with the earlier stages of the road map and continue negotiations before making a decision on opting out? Secondly, why are they opting out now when there is further time to negotiate? And, thirdly, can the Minister confirm that the Government are committed to the current system of access to counsel in a police station and do not intend to erode that right, and if so explain why they are pursuing clause 12?

The objections that the Government have raised are nugatory and susceptible to change, if there is any merit in them, whereas the advantages to British citizens abroad are clear and substantial. It is not good enough for the Minister to say that we can get all the benefits of the directive if it is enacted in 26 other countries, but that we do not need to bother with it ourselves. That sounds like a clear Eurosceptic “have your cake and eat it” voice from the Minister, and I am not sure that that is what he is saying, but it is a—[Interruption.] I am not sure that Government Members think that that is what he is saying, either, but it is a knee-jerk reaction to opt out at this stage.

[Mr David Nuttall (Bury North) (Con)]

The hon. Gentleman has on a couple of occasions in the past couple of minutes referred to opting out of the directive, but we are not opting out, we are simply not opting in, and in fact there is a big difference, because if we opt in we will never be able to opt out.

[Mr Slaughter]

The hon. Gentleman makes my point for me. The Minister is at least open and clear about attempting to take the benefits. He wishes to do so, and in that I agree with him. Appalling miscarriages of justice occur regularly, and we want British citizens to be protected from that, but we cannot do so without engaging. We can negotiate what are for us as a country relatively minor changes, if changes at all are needed, but if we accept the experts who briefed Justice we find that the Government have misinterpreted those minor changes, to which the Minister alluded, in any event.

In the end, it comes down to this: do we wish seriously to see the proposals implemented, in which case we should be in the game and negotiating clearly, or do we wish to take the Government’s somewhat disingenuous position tonight? For that reason, and notwithstanding the Minister saying that he may change his mind in due course, we will oppose the Government this evening.

--- Later in debate ---

[Mr David Nuttall (Bury North) (Con)]

I add my thanks to the European Scrutiny Committee and my hon. Friend the Member for Stone (Mr Cash) for ensuring that we are having another of our regular Wednesday evening debates on European matters. I am also pleased to say that for once I can support the Government’s present position on this issue, although I have to say that I am a little concerned that I might not be so readily able to support what might come in future.

When any of our constituents travel abroad, they do so in the full knowledge that they are entering a foreign country with foreign systems. It seems to me that the fact that there are inadequacies in some of the legal systems of other European Union member states is not a good reason to accept another dollop of European legislation.

I have heard no one suggest that our own procedures and legal systems in this country are not up to scratch. In fact, as far as I can see, it is a case of the rest of the Europe catching up with the systems and procedures that we already have in place. Of course, if we were ever to opt into the directive, we would have to change some of our existing procedures that have served us well. In my short time in the House, I have never had anybody complain to me about the procedures that we have in place in respect of access to a lawyer, the right to consult a lawyer when detained or any of our pre-charge procedures.

[Mr Nigel Dodds (Belfast North) (DUP)]

Whatever one’s view of the current procedures within the UK, surely it is for the House and the UK to decide whether there are to be changes, on the basis of the arguments, which should be fully explored and discussed beforehand, rather than changes coming about as the by-product of a European directive. That is the problem if there are to be changes in the UK system.

[Mr Nuttall]

The right hon. Gentleman makes an extremely valid point. I would have made the same point later, but I shall make it now. I have heard no complaints about our current procedures, but if there were a general acceptance that an aspect of them could be improved, it would be for the House to pass legislation to do so. We would then have the right to tinker with and change them as we wished. Indeed, we have done so. Only very recently, a Delegated Legislation Committee on which I sat altered the rules under the Police and Criminal Evidence Act 1984, because this House thought it appropriate to do so.

[Mr James Clappison (Hertsmere) (Con)]

My hon. Friend is making an important point in response to the one made by the right hon. Member for Belfast North (Mr Dodds). Has my hon. Friend turned his mind to the bigger picture? These opt-ins do not come before the House by accident or by way of judicious fine-tuning of our system. This measure is part of a political project that was put in place by the EU to create a European area of freedom, security and justice, whereby rules and laws on criminal procedures and other criminal matters will be made at the EU level rather than in this House, and whereby our law will be subject to that law.

[Mr Nuttall]

My hon. Friend makes another extremely valid point. Whenever I have discussions on European matters with constituents and other members of the public—not surprisingly, I have such discussions fairly frequently—time and again they refer to the fact that they are dissatisfied with our membership of the EU because they believed that the EU was to do with business and trade. They believe that the EU should have no part in justice or home affairs. When we entered the EU all those decades ago, it was never envisaged that the EU would play a part in justice and home affairs. That is one reason why I will continue to push for a referendum. Such things may have been in the minds of those who were pushing for the European project, but they were never in the minds of our electorate. They were never told about that and it was not part of their consideration when they went to vote back in the 1970s.

[Mr Cash]

May I remind my hon. Friend that the Conservative party, for the first time since 1972, was completely united in opposing the implementation of the Lisbon treaty? Only as a result of entering into the coalition agreement did we end up having to accede to many of the provisions that result from the introduction of a treaty that we were previously united in opposing.

[Mr Nuttall]

My hon. Friend makes an excellent point. That is one reason why opposition to our membership of the EU is growing in this country. As I often say to people, in many ways every directive that passes is another nail in the argument of those who will one day argue in a referendum—I believe we will eventually have one—that we should stay in the EU. People are increasingly fed up with the ever-growing competences of the EU. It is all very well to argue that the European Union Act 2011 will put an end to all these things, but we can see—day by day, week by week, month by month—that slivers of competence are going to Europe, and this would be another of those slivers. If the directive were adopted, it would be a classic example of this country’s handing over a further tiny piece of its competence. It might be only a sliver, but this is still a matter of sovereignty. At present, we can decide what our rules are.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Is this not also a classic example of the European ratchet? First the European arrest warrant allows British subjects going about their lawful business in their own country to be arrested by foreign Governments; then it is decided that there must be basic standards to protect them from such action, because that is only fair and proper; and that then leads to the conclusion that there must be more harmonisation of the criminal law across Europe. In fact, what Her Majesty’s Government should be doing is not just not opting into this, but getting out of all the other measures to which they have agreed.

[Mr Nuttall]

My hon. Friend has made an excellent point, which I am sure would find widespread support outside the House. Far too much legislation from Europe is already foisted on our constituents, and we certainly do not need this as well. It is, in my view, an example of a solution looking for a problem. There is certainly no great clamour for it. When our constituents go abroad, they may well choose to go to Europe—there are, after all, another 26 countries in the European Union—but they may equally choose to visit any of the other 170-odd countries in the world, where none of this would apply. What do they do then?

We ought to consider speaking—quietly and diplomatically, of course—to plenty of other countries which have judicial systems that are far less helpful to the accused than any that might be found in the European Union. This is, I submit, a criminals’ charter. If it were to become law, the criminals and their lawyers would not only have to comply with the Police and Criminal Evidence Act 1984, but would have recourse to this directive as well as the European Rights Act 1998 and the European convention on human rights. It would be yet another hurdle for our police to surmount in dealing with crime and disorder on our streets, and, in my opinion, a problem that we could well do without.

The other group of people who would profit from the directive are the lawyers, particularly legal aid lawyers. As has already been mentioned this evening, it has been suggested that advice be given face to face. I know from my own experience many years ago that when a suspect is arrested, advice is given quite adequately on the telephone, and I see no reason to change that arrangement. Again, there has been no clamour for it to be changed. I see no reason why this country should have to change its practices and procedures purely on the basis of this directive. It may well benefit other countries—indeed, it may well benefit some of our constituents when they travel abroad—but I feel strongly that there is no need for it to be adopted now or at any time in the future. I hope that even when the negotiations have been completed, this will be the last that we hear of it, and that we shall never see it back on the Floor of the House again.